In Re: Rebecca L. Alderson / Smiths Grove City Commission

02-OMD-153

August 23, 2002

In re: Rebecca L. Alderson / Smiths Grove City Commission

Open Meetings Decision

The question presented in this appeal is whether the Smiths Grove City Commission violated the Open Meetings Act by failing to observe the requirements for conducting a closed session at a public meeting held on July 22, 2002, and by conducting a series of less than quorum telephonic meetings to discuss the employment status of a city employee prior to the July 22 regular meeting. For the reasons that follow, we find that the Commission clearly violated KRS 61.815(1) when it failed to give notice “in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session,” and instead announced that it would discuss “personnel” issues.1 Although we cannot ascertain the subjective intent of the participants in the series of less than quorum telephonic meetings that were held for the purpose of discussing a city employee’s employment status,2 we further find that

1 Whether the personnel issue ultimately discussed in closed session was an appropriate subject for a closed session is, perhaps, a more critical issue. If, as the Commission maintains, the complainant in this appeal, Rebecca L. Alderson, had already been lawfully terminated, and the closed session was intended to afford her an opportunity to “address the Commission,” it cannot be persuasively argued that this was a “[d]iscussion or hearing that might lead to the appointment, discipline, or dismissal of an individual employee . . .” within the meaning of KRS 61.810(1)(f). (Emphasis added.) 02-OMD-153 Page 2 those meetings otherwise fell within the zone of prohibited conduct described in KRS 61.810(2).

On July 25, 2002, Rebecca L. Alderson submitted a complaint to Walt McCay, Mayor of Smiths Grove, in which she alleged that the Smiths Grove City Commission violated the Open Meetings Act:

by conducting business by telephone in lieu of an open meeting, where a quorum was present and public business was discussed as in the case of [Mayor McCay] hiring [her] on July 11, 2002 via the telephone and in [Mayor McCay] terminating [her] employment via the telephone on July 18, 2002.

Ms. Alderson noted that Mayor McCay “stated in each case of [her] employment and termination that it was discussed via the telephone and approved by Commissioner Shirley Martin, Terry Pierce, [and] Jessie Verner.”3 In addition, Ms. Alderson alleged that the Commission violated the Act at its July 22 regular meeting when it went into closed session “to discuss ‘personnel’ issues” without observing the requirements for conducting a closed session.4

In a letter dated July 31, 2002, Mayor McCay denied the allegations in Ms. Alderson’s complaint. He stated:

The Open Meetings Law was not violated in any respect in regard to your employment or termination as an employee of the City of Smiths Grove. You were hired under the City’s “at-will” employment status and were still within your 90-day introductory

2 Mayor Walt McCay acknowledges that “telephone conversations with certain members of the City Commission” occurred, but asserts that they were held for the purpose of “advising them of the actions [he] had taken as Mayor regarding the status of [Ms. Alderson’s] employment.” 3 The Commission is comprised of four commissioners and a quorum exists when three or more of the commissioners are present or engaged in a series of less than quorum meetings with the intent to violate KRS 61.810(1). 4 Ms. Alderson also alleged that she was invited into the closed session without any explanation for her presence “as it related to her employment status,” and that final action should not have been taken during the closed session “as was the case relating to [her] employment status and the decision not to hire a city clerk.” 02-OMD-153 Page 3

period. Your employment was commenced and terminated by me as Mayor pursuant to the authority delegated to the Mayor under the City’s personnel plan adopted by the City Commission under Ordinance No. 98-1 230.1 on October 26, 1998.

Accordingly, neither your employment or termination needed the approval or any other action taken at any meeting of the City Commission. Therefore, no public meeting was held. My telephone conversations with certain members of the City Commission was for the purpose of advising them of the actions I had taken as Mayor regarding the status of your employment. In other words, I was merely advising and updating them of the actions I had taken under the authority delegated to the Mayor under the attached ordinance (See, 92-OMD-1688).

Your employment was terminated on July 19, 2002; therefore, you were not employed by the City when you attended the meeting of the City Commission on July 22, 2002. The closed session of that meeting was commenced because I had been advised by one of the Commissioners that you desired to address the Commission in closed session. As you will recall, you were invited to address the Commission and, in my presence, you presented lengthy criticism of the manner in which I had handled your employment.

As you know, no action was taken by the City Commission, final or otherwise, during either the closed session or in the open session which followed. Everything was handled in the manner in which I understood you desired.

Noting that Ms. Alderson neglected to propose any remedial measures to be taken by the Commission relative to the purported violations, Mayor McCay concluded that he was “at a loss as to how to otherwise respond to [her] allegations of violations of the Open Meetings Law . . . .” This appeal followed. 02-OMD-153 Page 4

On appeal, Ms. Alderson alleges additional violations of the Open Meetings Act relating to telephone discussions of her salary and benefits and waiver of her probationary period, asserting that, in her opinion, the Commission has violated the Act by virtue of “the manner in which business is being conducted and decisions are being made . . . .”5 She proposes “as a remedy for now and the future that the City Commission comply with all laws concerning open meetings.” In supplemental correspondence directed to this office following commencement of the appeal, Mayor McCay “reaffirms all statements set out in [the Commission’s] response on July 31, 2002 to Ms. Alderson’s complaint dated July 25, 2002 and to add that [he] did not decide to waive any probation period and no probation period was waived as to Ms. Alderson’s employment.” In closing, he notes that the Commission “will continue to comply with the Kentucky Open Meetings Law.” Based on our review of Ms. Alderson’s complaint and the Commission’s response, we conclude that, with the exception of a finding as to the subjective intent of the participants in the series of less than quorum telephonic meetings, the record is sufficient to support the claimed violations.

On several occasions, this office has observed:

Fundamental to an analysis of the propriety of a public agency’s conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:

The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.

In interpreting this provision, Kentucky’s courts have recognized that “the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” E. W. Scripps Co. v. City of Maysville, Ky.App., 750 SW2d 450 (1990)

5 Because these allegations were not made in her original complaint to Mayor McCay, they are not ripe for review by this office. 02-OMD-153 Page 5

cited in Floyd County Board of Education v. Ratliff, Ky., 955 SW2d 921, 923 (1997).

99-OMD-94, pp. 3-4. It is the opinion of this office that the Smiths Grove City Commission did not comply with the strict letter of the law when it went into closed session at its July 22 meeting.

Ms. Alderson complains, and Mayor McCay does not dispute, that the Commission went into closed session for the stated purpose of discussing “personnel” and without observing the requirements codified at KRS 61.815. That statute provides that as a condition for conducting closed sessions authorized by KRS 61.810:

(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session; (b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; (c) No final action may be taken at a closed session; and (d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

In construing this provision, the Kentucky Supreme Court has observed:

KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting.

Ratliff at 924. KRS 61.815 is thus aimed at promoting the “express purpose” of the Open Meetings Act, namely, “to maximize notice of public meetings and actions.” Id. at 923; see also, 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must observe these formalities before going into a closed session); 95-OMD-92 (holding that 02-OMD-153 Page 6

KRS 61.815 “clearly require[s] that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session); 99-OMD-146; 01-OMD-227. The Commission offers no proof, such as minutes of its July 22 meeting, to refute Ms. Alderson’s assertion that it did not comply with KRS 61.815. In the absence of such proof, we conclude that the Commission’s actions constituted a violation of the Open Meetings Act.

It appears that the Smiths Grove City Commission intended to rely on KRS 61.810(1)(f) as the exception authorizing the closed session. That provision authorizes public agencies to conduct closed sessions for:

Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee’s, member’s, or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret[.]

With specific reference to this provision, commonly referred to as the “personnel exception” to the Open Meetings Act, this office has opined:

A public agency’s authority to go into a closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or dismissal of personnel of that particular agency. See 93-OMD-49, at page three, and OAG 90-125, at page two.

Prior to going into a closed session for one of the specific purposes authorized by KRS 61.810(1)(f), a public agency must state during the regular and open portion of the meeting the general nature of the business to be discussed and the reason for the closed session. While the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal or disciplinary action, the public is entitled to know the general nature of the discussion which would 02-OMD-153 Page 7

be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.

97-OMD-110, p. 3; see also 97-OMD-124; 99-OMD-49. Echoing this view, the Attorney General recently held that “an agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, or the discipline, or the dismissal of an employee of the agency, indicating which of these particular actions is contemplated.” 99-OMD-49, p. 3.

In defense of its actions at the July 22 review meeting, the Commission maintains that it took the occasion of the closed session to permit Ms. Alderson the opportunity to address the Commission members on the topic of her termination.6 If, as the Commission argues, Ms. Alderson had already been terminated by unilateral action of the Mayor under the authority vested in him by city ordinance, the closed session discussion could not have led to her dismissal, as required by KRS 61.810(1)(f), and was therefore improper.7

Although it does not arise under the Open Meetings Act, the question of whether the Mayor had unilateral authority to dismiss Ms. Alderson is central to resolution of the second issue on appeal: Whether the Smiths Grove City Commission violated KRS 61.810(2) by discussing her employment status in a series of less than quorum meetings, where the members attending one or more of the meetings collectively constituted at least a quorum and where the meetings were held for the purpose of avoiding KRS 61.810(1). KRS 61.810(1) provides:

6 In general, the presence of a person who is not a member of the public agency in the closed session is inconsistent with the purpose of conducting a closed session. Limited exceptions to this general rule exist as, for example, where the non-member “can contribute information or advice on the subject matter under discussion, but the non-member should remain only so long as is necessary to make his [or her] contribution to the discussion.” OAG 77-560, p. 3; see also OAG 80-247, OAG 83-61, and 92-OMD-1728; 00-OMD-219. Where the purpose of the closed session is to hold discussions which might lead to the appointment, discipline, or dismissal of an individual employee, that employee’s presence may be permitted. 7 The record before us is devoid of hard evidence that final action was taken in closed session relative to, for example, a decision not to hire a city clerk, and we are therefore not equipped to resolve this allegation of Ms. Alderson’s complaint in either the Commission’s or her favor. 02-OMD-153 Page 8

All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times . . . [.]

The term “public business” is not defined in the Open Meetings Act. However, in Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky Supreme Court declared that:

Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the [agency] has the option to take action.

Analyzing KRS 61.810(2), the Court concluded that the Open Meetings Act “prohibits a quorum from discussing public business in private or meeting in numbers less than a quorum for the express purpose of avoiding the open meeting requirement of the Act.” Id.8

The City of Smiths Grove is a fifth-class city that operates under the commission form of government, and pursuant to KRS 83A.140(3), the Commission is vested with all legislative, executive and administrative authority of the city. In OAG 84-50, this office was asked to determine whether the mayor or a city legislative body, operating under a commission form of government, had the authority to appoint and remove nonelected city officers and city employees. There we concluded that the authority vested in the commission by KRS 83A.140(3):

include[s] establishment of all nonelected offices and positions of employment and the appointment of individuals to fill these positions. In addition, the commission would have the power to remove such individuals at will unless they are covered by some form of civil service or unless the commission itself enacts an ordinance restricting the removal except for cause. This is, of

8 Clearly, this holding extends to meetings in which the participants are present in the same room and meetings conducted by telephone. 02-OMD-153 Page 9

course, contrary to the over-all administrative powers given the mayor, including the power to hire and fire nonelected officers and employees under the councilmanic form of government. The mayor, under the commission form, is a voting member of the commission. Otherwise, his powers are extremely limited but do include the powers to execute all bonds, notes, contracts and written obligations on behalf of the city that have been authorized by appropriate ordinance. See KRS 83A.140(4).

From this opinion, we must conclude that the power to hire and fire city employees resides in the Commission, not in the Mayor. Pursuant to KRS 83A.160, a city may change its organization and government from a commission form of government to a mayor-council plan or a city manager plan, but this change is accomplished “by popular vote in accordance with KRS 83A.120,” and not by local ordinance aimed at delegating authority that is expressly assigned by statute. We therefore believe that the series of less than quorum discussions of Ms. Alderson’s employment status between the Mayor and the Commission members was a discussion of public business, meaning a discussion of the various alternatives to a given issue about which the Commission had the option to take action, and not merely an update from the Mayor on “the actions [he] had taken under the authority delegated to the Mayor under the . . . ordinance . . . .”

For this reason, the appeal before us is distinguishable from the appeal that gave rise to 92-OMD-1688 upon which the Commission relies. The latter appeal involved a city operating under a mayor-council form of government, in which broad administrative powers are reposed in the mayor, including administration and implementation of an adopted budget ordinance. The complainant alleged that an apparent telephone vote taken by a city employee, at the mayor’s request, of city council members led to the purchase of paper recycling equipment in contravention of the Open Meetings Act. We found no violation, opining:

At the point in the purchase of the recycling equipment with which this appeal is concerned the mayor and the executive department of the city were proceeding pursuant to authority conferred upon them by the budget ordinance in the form of an appropriation by the city council. No meeting was held as none was required at this 02-OMD-153 Page 10

time and thus the provisions of the Open Meetings Act are not applicable. The mayor, as the head of the executive branch of government, was merely advising and updating the legislative branch on the proceedings undertaken pursuant to the budget appropriation. In meeting the statutory obligation imposed upon the Attorney General under KRS 61.846(2) to determine if the public agency violated the Open Meetings Act, it is our decision that the city . . . did not violate the Act with regard to the telephone calls made under the mayor’s direction to the members of the city council concerning the recycling equipment.

92-OMD-1688, p. 3. Smiths Grove’s personnel ordinance notwithstanding, Mayor McCay did not enjoy exclusive authority to hire and fire Ms. Alderson and his telephone discussions with members of the City Commission did not constitute a mere update. 92-OMD-1688 is therefore inapposite.

KRS 61.810(2), enacted in 1992, places restrictions on the rights of public officials to engage in discussions of the public’s business in any forum other than a public forum. KRS 61.810(2) specifically provides:

(2) Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.

Acknowledging the difficulties associated with determining the subjective intent of the participants in a series of less than quorum meetings, this office concluded, in 94-OMD-106, that the fiscal court violated the Open Meetings Act when its members met individually or in small groups to discuss public business. At page 3 of that decision, we reasoned that KRS 61.810(2) “represented an attempt by the General Assembly to prohibit a public agency from getting together with less 02-OMD-153 Page 11 than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act.” Compare 02-OMD-107.

While we again acknowledge our inability to determine the subjective intent of the participants, it is apparent that the issue discussed in this series of less than quorum telephonic meetings, namely Ms. Alderson’s employment status, was public business as that term is defined in Yeoman, above. Regardless of whether the outcome was predetermined, or the commissioners collectively decided on the outcome, we believe that the Commission’s actions were improper to the extent that the intent was to avoid the requirements of KRS 61.810(1). KRS 61.810(2) prohibits all less than quorum meetings where the members attending one or more of the meetings collectively constitute at least a quorum, and not just those which culminate in a collective decision.

This position comports with the views expressed by the drafters of the Open Meetings Act in the preamble to the statute:

[T]he people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.

1974 HB 100, Preamble. Although there is no empirical means by which this office can determine the Commission’s intentions, we find that the Smiths Grove City Commission’s actions otherwise fell within the zone of prohibited conduct described in KRS 61.810(2).

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding. 02-OMD-153 Page 12

Albert B. Chandler III Attorney General

Amye L. Bensenhaver Assistant Attorney General

Distributed to:

Rebecca L. Alderson 117 Webb Ave. Smiths Grove, KY 42171

Mayor Walt McCay, Mayor City of Smiths Grove City Hall 106 South Main Street P.O. Box 114 Smiths Grove, KY 42171

Whayne C. Priest, Jr. English, Lucas, Priest & Owsley 1101 College Street P.O. Box 770 Bowling Green, KY 42102-0770